November 29, 2003

Scalia's Scorched-Earth Dissents

Justice Scalia has a way of provoking otherwise sensible people into making less than completely sensible arguments. Professor Dorf's most recent column is a case in point.

Dorf's basic thesis is as follows:

The question nonetheless remains—and it is a question perhaps better answered by a psychoanalyst than by a constitutional law professor—why on Earth Justice Scalia writes what he regards as parade-of-horribles dissents that risk becoming self-fulfilling prophecies.

Having indirectly disowned any expertise in the allegedly relevant discipline, Dorf nonetheless presses onward. He has in mind Scalia's dissent in Lawrence v. Texas, for example. Despite the nature of the question posed, Dorf does not offer a very fulsome answer. He offers and rejects two alternative explanations for Scalia's scorched-earth dissents and settles on a third rationale:

Justice Scalia views his colleagues' approach to some issues—such as abortion, affirmative action, and gay rights—as not merely different from his own, but as fundamentally illegitimate.

I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against "unfairness"—neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable.

This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect—indeed, I do not feel justified in doing so. . . .

Id. at 598-99 (Scalia, J., dissenting) (internal citations omitted).

It is clear in Gore that Scalia regards the majority's approach as illegitimate. So Dorf is correct to the extent that he asserts that Scalia's textualism leads him to regard other alternatives as illegitimate. As with the dissents highlighted by Dorf, Scalia's dissent in Gore is peppered with barbs (e.g., "One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say."), and features the very sort of dire predictions that Dorf finds inscrutable. In conclusion, Scalia writes:

. . . The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition.

Id. at 607 (Scalia, J., dissenting).

The immediate and obvious point that one may draw from Gore is that Dorf's analysis is myopic. Scalia's textualism and his concomitant disdain for the interpretive methods employed by others is hardly limited to the contexts of abortion, affirmative action, and homosexual rights—the areas that Dorf examines and sets out to explain. Because Dorf dwelled exclusively on the aforementioned areas, he wrongly assumed that there was something unique about Scalia's conduct therein.

Second, Dorf makes an even sharper wrong turn in his assertion that there is anything unique about Scalia's dissents in general. Although Scalia certainly is caustic in dissent to a degree that the other justices are not, a demonstration of the perceived untoward consequences of a majority decision is a hallmark of dissents and may readily be found in dissents penned by others, so much so that I need not even cite examples for those familiar with the Supreme Court to know that such is inarguably true. Indeed, I suspect that there is not a single sitting justice who has not authored such a dissent.

Third, Dorf overlooks the single most obvious and plausible reason for identifying in dissent the logical consequences of a majority decision that one dreads but nonetheless recognizes: intellectual honesty. That Scalia honestly thinks that Lawrence entails far more than it purports to address would appear to be the most reasonable explanation for his assessment. It is not necessarily self-destructive or counterproductive, it's just straightforward.

In this regard, Dorf's theory of causation gets it precisely backward. The Supreme Court of Massachusetts did not cite Lawrence in Goodridge because of anything that Scalia said in dissent, it cited Lawrence because of what the majority decision said, because Scalia's appraisal was accurate (i.e., Lawrence entails far more than it immediately holds). Anyone and everyone would have recognized this had Scalia never written a single word in response.

November 28, 2003

The Folly of Universal Publication

Professor Lazarus has finally penned something with which I am entirely in accord: the incipient rule allowing the citation of "unpublished opinions" is a disaster waiting to happen. Lazarus writes:

Given the avalanche of federal litigation, appellate judges are constantly engaged in triage. They must separating the relatively routine cases, to which they will devote relatively little attention, from the more difficult and complex cases that require a substantial investment of judicial resources.

* * *

. . . [T]he current rule, whereby courts do not allow citation of unpublished decisions, simply reflects the underlying truth that all cases do not receive the same level of judicial scrutiny. That reality is unlikely to change unless one of the problems I isolated above—the understaffing of the federal courts—changes first, and dramatically.

Lazarus writes of the Ninth Circuit. In many ways, that circuit and its problems are unique. The Ninth Circuit's gargantuan size creates problems related to publication of judicial opinions that might not exist or exist to the same degree elsewhere. However, I suspect that the general thrust of Lazarus's criticism remains valid with reference to many, if not all, of the other circuits as well.

In an interview, a judge for the Fifth Circuit once described a portion of the appellate caseload as "the Augean docket." Apparently, cases that fall within this category will be disposed of by the dozens in a single afternoon. Cases that are less execrable yet undeserving of much attention are apparently principally handled by staff attorneys with executive oversight wielded by the judge in question. Only a handful of cases are labored over by this judge's law clerks and undergo the laborious internal editing process by judge and clerk alike that produces an opinion of publishable quality. Granted, this is solely one vignette of the appellate process based on the practices of a single judge, but his recitation gave no indication that his modus operandi was uncharacteristic of the circuit as a whole.

This ought to give one pause. After all, as any lawyer can tell you, often the "published" opinions are maddeningly unclear or ambiguously drafted. So the reader can imagine the state of the "unpublished" ones. "Unpubllished" opinions, which frequently omit a fulsome recitation of the relevant factual and procedural history, are often little more than a barebones statement of the law. Bereft of this crucial context, they have little meaning to anyone other than the parties. Or rather, no one but the parties involved (and the issuing court) is in a position to decipher their true meaning. Nonetheless, lawyers being lawyers frequently grasp any convenient language to advance an argument. Hastily drafted and incomplete opinions will provide ample additional opportunities for such overreaching and will only add still more to the glut of appeals.

The text of the proposed rule and further discussion of its potential impact in conjuction with other developments may be found here and here.

November 26, 2003

Subtle Racial and Sexual Harassment?

CNN is reporting a story that just goes to show that it is increasingly difficult to parody political correctness:

LOS ANGELES, California (Reuters)—Los Angeles officials have asked that manufacturers, suppliers and contractors stop using the terms "master" and "slave" on computer equipment, saying such terms are unacceptable and offensive.

The request—which has some suppliers furious and others busy re-labeling components—came after an unidentified worker spotted a videotape machine carrying devices labeled "master" and "slave" and filed a discrimination complaint with the county's Office of Affirmative Action Compliance.

In the computer industry, "master" and "slave" are used to refer to primary and secondary hard disk drives. The terms are also used in other industries.

Of course, computer cables (among many other things) are also often designated male or female, with the male component inserting into the female one. The same can be said of a certain type of screw that is frequently used in assembling materials; so-called "sex screws" feature a long "male" part that screws into a "female" half. Gloria Allred, call your office!

Brave New Marriage

November 25, 2003

The Identity of Allah

Stuart Buck has posted a comment in which he, perhaps, flirts with the notion that Christianity and Islam are faiths devoted to different gods (i.e., that Allah is not the same God that Christians worship). Buck does not come out and say so. Instead, what he directly disputes is the logic of the proposition that, "'if you believe in only one God, it makes no logical sense to describe a fellow monotheist as worshipping a 'different' God.'"

Regarding the accuracy of this proposition, I think Buck is right to be doubtful. For example, Zoroastrianism is commonly (though, perhaps, inaccurately) described as monotheistic, but Ahura Mazda and the Judeo-Christian God are not by any means the same entity. The two religious traditions do not purport to worship the same being. The entities involved are substantially descriptively different.

It is possible that Buck might disagree with such reasoning. But the general tenor of his discussion indicates otherwise. He frames any potential debate in this fashion:

Isn't there some point at which A and B disagree over so many details that they might as well be talking about two different [gods]? And where is that point?

In more technical terms, I guess what I'm asking is whether "God" is a rigid designator (see Saul Kripke's Naming and Necessity), such that in all possible worlds the name "God" refers to the same being even if the contingent facts about him are different? Or is it inherent in the concept of God that there are no contingent facts about him, and therefore no other possible worlds?

My hunch is that Buck thinks that such contingent facts do exist and so might accept my differentiation between Ahura Mazda and God. The context of his post suggests that he might be sympathetic to a similar argument regarding Allah. I am not sure of this though, and I do not wish to put words in his mouth.

However, to the extent that someone might make such a claim—and some folks do—it does not seem sustainable on the basis of the relevant contingent facts. That is, Judaism, Christianity, and Islam are sufficiently similar that they cannot be adequately differentiated in such a fashion as to conclude that each religon worships a different divine being. From a Christian perspective, what the three principally differ on is the role of Jesus. Muslims esteem Jesus as a prophet but do not regard him as being the son of God or God Himself. Professor Yvonne Haddad has pithily summarized the relationship between Islam and it's Judeo-Christian forebearers:

"Islam is a religion in the line of Judaism and Christianity. It believes in the same God," says Haddad.

Islam, which literally means, "surrender to God," recognizes Jesus as a prophet, but credits the prophet Muhammad, born in about A.D. 570, with founding the religion.

According to Islam, Muhammad had a life-changing religious experience when, at the age of 40, he had a vision of the angel Gabriel.

Gabriel told Muhammad to spread the word of Allah, or the One God, to the Arabs. To guide him, the angel gave Muhammad the Koran, or the literal word of God.

The Koran [or Qur'an] is the Muslim equivalent of the Christian Bible or the Jewish Torah.

I believe that a fair reading of the Qur'an will bear out such statements. For those interested, I have found N.J. Dawood's translation to be useful. For those who can (unlike me) read Arabic, the linked version of Dawood's translation has the parallel Arabic text printed alongside the English translation.

It makes lots of people feel real good to say that we all worship the same God. But that notion requires us to jettison a great deal of what makes one religion different from another. Some folks are satisfied with that sort of theology. Christ would not have been.

I don't necessarily disagree with this sentiment. Although I have represented by way of simplification that the chief difference between Judaism, Christianity, and Islam is the status accorded to Jesus, Christians have traditionally regarded this as the theological divide between heaven and hell. So it is no small difference. But this is hardly relevant to the question of whether Allah is God. If Jesus's status as Messiah is a contingent fact sufficient to establish that Muslims and Christians worship different gods altogether, then one must also conclude the same regarding Judaism and Christianity—a notion that seems historically unsustainable and which Jesus (as a Jew) would have likely regarded as rather strange.

November 24, 2003

He Said It

I always refrain from commenting on my experiences on the job (for ethical reasons). However, Ernie the Attorney, a former law clerk for a federal district judge, has posted an interesting bit of advice stemming from his days in clerkdom. Among the choicer morsels in his discussion of jury instructions is the following:

I clerked for a federal district judge for 2 years, and during that time I learned a lot. Mostly, I learned that lawyers have no idea how to persuade the court to rule in their favor.

That's a remakable commentary on a profession that is trained how to reason and argue like a lawyer for three years. It is a given that advocates who cannot effectively advocate are, well, not advocates at all. I'll leave it to others to offer opinions on the accuracy of Ernie's assessment.

November 23, 2003

Speaking of Comics-Related Controversies . . .

I purchased Gary Larson's The PreHistory of the Far Side: A Tenth Anniversary Exhibit yesterday. It was on sale at a bargain price that I just could not pass up. It includes some wonderful correspondence triggered by the appearance of various Far Side comics over the years. For example, a cartoon entitled Tethercat that featured a couple of dogs beating a cat attached to a rope on a pole led to multiple letters decrying Larson's cruelty to animals (e.g., "'I was hurt and offended by today's 'Tethercat,' which made a cruel and inhumane 'joke' out of abuse of a small animal.'"). Amnesty International apparently wrote in protest everytime Larson drew one of his dungeon/torture strips as well. So it just goes to show how seriously people take comics of all things. Of tangential interest to the recent flap over B.C., Larson notes that, "[i]n the first years of drawing The Far Side, . . . [he] wasn't even allowed to show an outhouse, regardless of how it was handled."

November 22, 2003

Is Islam Above Criticism?

The comic strip B.C. is once again surrounded by controversy. It's this strip in particular that has landed its cartoonist Johnny Hart in trouble this time. Criticism of the strip has found its way into the Washington Post.

Let's have some disclosure up front: I don't like B.C.. Like some other prominent comic strips, it simply is not funny. It never has been. And Hart's propensity for none-too-subtle evangelizing does not endear it to me either. I'm a Christian. I take Christianity seriously. But I don't read comics for theological succor. Peanuts and Dilbert are more my style. Besides, there is something inherently illogical about a strip entitled Before Christ dwelling on Christianity, no?

Nonetheless, I think that this latest controversy is rather overstated. The Reader's Digest summary is that Hart is alleged to have cartooned one of his characters as saying of Islam, "Is it just me, or does it stink in here?" Hart denies that he intended to convey any anti-Islamic sentiment. Viewed in context, it is difficult to believe this denial, particularly given that the strip is otherwise senseless and unfunny. But, as I said, B.C. generally is senseless and unfunny, so there is some ambiguity on this point.

My surmise it that Hart was metaphorically criticizing Islam. I gather that some other folks feel this way too. Unlike these others, however, I am not really appalled by such criticism.

It seems to me that something is truly wrong in Islam today and that it merits ceaseless criticism. It gives me no pleasure to say so. I am generally rather ecumenical about my Christianity, and though I am hardpressed to justify such ecumenism doctrinally, it generally extends beyond my co-religionists to Judaism and Islam as well. Or at least it once did.

I know that I am not alone in my view of Islam. One can find serious academic discussions of it. See, e.g., Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (2003). Moreover, a gander at the breadbasket of Islam, North Africa and the Middle-East, is hardly reassuring. Aside from Turkey, which major Islamic nation can one name that is not reprehensible? Of course, one should be careful to distinguish between government and religion. In Iraq, for example, the former was the problem. But our attempts to solidify a new one has demonstrated the threat to any open society posed by certain Islamic factions.

These are only factions, of course, but it seems noteworthy that modern Judaism and Christianity do not seem to produce the same dangerous elements. Quite apart from such problems, modern Islam generally does not seem modern at all. Indeed, it seems to be content to retain values straight out of the medieval era. Honor killings seem to occur with some frequency. Stoning as a sentence for adulterers (even victims of rape) is not unheard of. No one would want to live under even a moderate form of Sharia law, let alone the Wahhibism of Saudi Arabia.

Perhaps, one might argue that Hart is not offering pointed criticism but a mere generalized obloquy. This could be so, and I would not agree with an unqualified denunciation of Islam. But there is only so much complexity that one can cram into a three-panel comic strip.

What intrigues me about the perceived offensiveness of the strip in question is that no one would bat an eye if Christians were subjected to such criticism. For example, sincere conservative Christians endure no end of criticism for their views on homosexuality and their concomitant opposition to gay marriage and disdain of the result in Lawrence v. Texas. But the Qur'an is just as uncompromising on homosexuality, see Qur'an 7:80-82, 26:165-66, and it is not solely conservative Muslims who adhere to its teachings on the subject. So surely the criticism of Hart is not that Islam may not be criticized.

November 21, 2003

Banishment as a Criminal Punishment

The Anchorage Daily Newsreports that a state court has upheld a tribal council's banishment of one of its members. The newspaper story begins:

A Superior Court judge has upheld the right of a tribal village to banish a dangerous resident and to get an order from state courts to enforce the banishment.

In a short, scathing decision issued late Wednesday, Judge Peter Michalski refused to dissolve an injunction he issued in 2001 at the request of the Native Village of Perryville, a small Alutiiq community about 200 miles southwest of King Salmon on the Pacific coast of the Alaska Peninsula.

The injunction backed a village tribal court resolution banishing John Tague, a local man with a long history of alcohol-fueled violence against other villagers. It said Tague could not return to Perryville without first getting permission from the local council or the Superior Court.

I know little about the law involved and the state court judge's opinion does not appear to be available on the web or via Westlaw, so it is hard to have an informed opinion on the matter. I do know that exile as a criminal sanction is not unique to Alaska. Nonetheless, I do wonder about the validity of this sort of banishment. For starters, an Alaskan appellate court previously struck down a similar punishment. See Edison v. State, 709 P.2d 510, 510 (Alaska Ct. App. 1985) (vacating condition of probation that required defendant to obtain written court permission prior to entering a particular village without resort to constitutional grounds).

In the context of deportation of aliens, banishment is, of course, unquestionably valid. See Harisiades v. Shaughnessy, 342 U.S. 580, 599 (1959) (Douglas, J., dissenting) (conceding that "[b]anishment may be resorted to as punishment for crime"). But what is going on here is a form of domestic quasi-banishment. In the Alaskan case, the defendant is banished from a particular locality; in the Georgian case detailed in the second linked article, the defendant in question was banished from all but a particular county.

It does not appear that an individual state of the union could banish a resident from the state altogether without violating the constitutional right to freely travel, see Saenz v. Roe, 526 U.S. 489, 500-04 (1999), the Citizenship Clause of the Fourteenth Amendment, seeU.S. Const. amend. XIV, § 1, and Article IV of the Constitution, see Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277 (1993) (noting that "Art. IV, § 2" of the Constitution "'inhibits discriminating legislation against [citizens of other States and] gives them the right of free ingress into other States, and egress from them'"). None of these rights is implicated by internal, intrastate travel restrictions, however. See Bray, 506 U.S. at 277 (stating that "a purely intrastate restriction does not implicate the right of interstate travel").

What troubles me about such forms of quasi-banishment is not the punishment faced by the banished defendants. In Georgia, for example, banishment is authorized "only as a reasonable condition of probation or suspension of a sentence." Sanders v. State, 577 S.E.2d 94, 96 (Ga. Ct. App. 2003). Doubtless, banishment is preferable to outright incarceration.

Rather, it is the imposition that banishment places on other, innocent communities that disturbs me. In the Alaskan case, the tribal council appears to be exporting its problems elsewhere rather than bearing the social costs of its own antisocial members. In the Georgian case, a single county is being burdened with a criminal resident who might otherwise dwell elsewhere. Alaskan caselaw itself testifies to the harm that can arise as a result of passing the buck. See Krack v. State, 973 P.2d 100, 101 (Alaska Ct. App. 1999) (child molestor exiled from New Mexico as condition of pretrial diversion program took up residence in Alaska and molested dozens of additional victims). One wonders if the involuntarily burdened communities might make a claim sounding in Equal Protection.

[Note: Given the law recited above, I have no idea how New Mexico managed to banish someone from the state entirely. It may well have been illegal, but someone in the defendant's position would probably prefer exile and continued freedom to the enjoyment of constutitional rights and incarceration. Accordingly, the issue may have never been broached. Anyone with a better understanding of the law involved is welcome to chime in.]

November 20, 2003

Rape Fantasy or Criminal Conspiracy?

In a letter dated June 29, 2002, Ms. Chalfoun asked Mr. Paccione about the other rapist and suggested he should "do something constructive with his deviant potential."

She said an attack on three of her relatives would be easy because the rapist is Italian, just like the spouse of one of the relatives, and he could get into the house while the spouse was out by passing himself off as a cousin visiting from Italy.

"Then he could be really mean and violent," wrote Ms. Chalfoun. "One thing I insist on is that when he's beating her, he say: 'This is for all the bad things you've done to others . . . you're nothing but a whore . . . . Then he could do the Jack the Ripper thing."

Ms. Chalfoun was a court liaison officer and former probation officer. The court accepted her defense that these sentiments were a harmless fantasy rather than a genuine plot, notwithstanding the fact that her correspondence was with a convicted sex offender. A defense expert opined that, the defendant "showed a lack of judgment by writing to a sexual delinquent in prison." That seems like a bit of an understatement.

Transsexualism, Society, and the Law

Of transsexualism, Ampersandwrites that, "[g]ender is getting more complex, and interesting, every year." This is undoubtedly true. However, I doubt that Ampersand and I could find too much else upon which we agree on this particular topic. For example, Ampersand writes:

. . . I'm pretty sure that my body's sex just isn't an important part of my self-identity. When I hear some transsexuals talk about how important it is for them to have a particular sexed body, I'm sympathetic, but I'm also bewildered; I can't imagine caring so much about something so (to me) irrelevant.

Personally, I am not ready for Ampersand's post-sex world in which biological identity means nothing. This is not, of course, to say that it means everything. But nothing, irrelevant?

I take it that American society in general must be closer to my position (i.e., that biological sex is significant). But it's not clear to me that this sentiment will remain static. Two recent stories provide a nice framework for thinking through the implications of biological identity in the context of transsexualism:

The two stories provide an interesting contrast. The first features an example of notions of biologically fixed identity being relaxed in a fashion that accomodates transsexualism, while the latter depicts biological identity as paramount. Are such decisions situational, or must one principle win out? If the latter, then which principle?

This issue promises to bedevil the law, which, in many places, is premised on the notion of two mutually exclusive, readily distinguishable sexes and treats sex as dispositive. Although I have seen no comment on it elsewhere, one presumes that jurisdictions like Massachusetts will regard transsexualism in the context of civil marriage as irrelevant in the post-Goodridge world. Otherjurisdictions have typically disallowed such unions, focusing on biological identity. A decision like Goodridge preempts such biologically-driven reasoning.

One foreign case has already rejected what I take to be the typical American position, though it is important to note that I am making an educated guess as to what the majority legal position is in America. Moreover, at least one American court, in an 809-page opinion, upheld a transexual union without the benefit of a Goodridge-like decision.

Although Goodridge would appear to achieve the same end result, note that the manner in which it does so is remarkably different. A jurisdiction that abides by a Goodridge-like rule simply avoids the questions raised by transsexualism altogether by declaring sex immaterial in every case. Jurisdictions that disallow same-sex unions, on the other hand, must squarely address the issues of biology raised by transsexualism.

November 19, 2003

Politics Uber Alles

Chris Bertram has a post that is disturbing, but not for the reason that he thinks. He writes:

A few weeks back I posted on cruelty to animals and was surprised to receive an inquiry about whether I'd be willing to write on the subject for TechCentralStation. I declined (too right-wing for me). . . .

I was a trifle stunned to read this bit about not wanting to write for a an outlet that does not share his political views in some overall sense. Clearly, this sentiment is not entirely invalid. After all, sensible folks would decline to be associated with a publication that espoused ideas antithetical to moral or political decency (e.g., a neo-nazi periodical). Such assessments of decency are by their nature subjective, but Tech Central Station is surely not beyond this pale.

It's not that Bertram isn't within his rights to decline such affiliation. This just seems to me to reflect an unhealthy politicization of personal decisionmaking. For example, I am none too fond of publications like The Nation and Salon. In general, I think that reading microwave instructions in lieu of these periodicals is likely to make one better educated. I do not share their politics to say the least. However, if I were offered a column at either on an issue about which I and the editorial viewpoint of the magazines were in accord, why not? I don't think much of the New York Times editorial page either, but I wouldn't hesitate to publish there if my services were desired. (I am speaking very hypothetically, of course.)

On a more serious note . . . TCS does occasionally have an article that is relevant to [her site], but I find myself reluctant to link to them—for the same reason Chris didn’t want to write for them. And then I second-guess myself for that, thinking I should judge each article solely on its merits, and ignore where it comes from. Yes but then I think—and so on.

Linking to people with whom one disagrees? Unthinkable! Imagine it . . . a world in which we actually acknowledged the existence of opposing viewpoints. The sheer godawfulness of the idea is self-evident. Acknowledge inconvenient arguments and the next thing you know you'll actually have to answer them. What's even more disconcerting is that this commenter's site's statement of purpose declares that, "to tell the truth about the world it is necessary to put aside whatever preconceptions (ideological, political, moral, etc.) one brings to the endeavour."

Update I: Bertram has posted a response that is worth reading. He writes:

I would, though, like to invite those who have suggested that I’m reluctant to read or to link to sites which disagree with my own political beliefs to peruse my postings on CT (or earlier, on Junius). They’ll see that their suggestion is misplaced. But I do see that my rather brief explanation of my unwillingness to write for TCS—"too right-wing for me"—was misleading. After all, if the Daily Telegraph offers me a column, I’ll happily accept. TCS, though, isn’t just a broadly conservative media outlet but a site that relentlessly pushes a particularly narrow agenda—"where free markets meet technology"— in a style reminiscent of "infotainment" or those articles you sometimes start reading that look like the proper thing but have "paid advertisment" discreetly tucked-away somewhere. And I felt that I didn’t want either to lend respectability to such an outfit or, conversely, to have my own undermined by association with it.

I'm not sure that I would so characterize TCS, but that's an issue that must take into account Bertram's substantive criticism of TCS's behavior too. (Bertram could be right in that criticism; I simply have not focused on the story long enough to know. TCS's conduct certainly sounds untoward—although its conduct does not amount to grounds for condemning TCS's apparently unwitting contributors.) Bertram's response otherwise seems entirely satisfactory. As this appears to have been a misunderstanding, it's hard to fault Bertram.

And I wouldn't do so. . . except that Bertram also includes this bit at the very end of his response:

I'm still puzzled by the Curmudgeonly Clerk, by the way, who opines that my deciding not write for TCS reflects an "unhealthy politicization of personal decisionmaking." Is there something wrong with allowing one's values to inform one's personal decisions?

Ah, but I do not argue that such any such overlap is unhealthy, but rather that overpoliticization is unhealthy. On an intuitive level, I thought that declining to publish with what otherwise seemed to me to be a politically mainstream media outlet was, well, overly zealous. It struck me as being akin to declining to appear on CNN or FOXNews for political reasons. Perhaps, what I am saying is that Bertram's statement struck me as an unreasonable application of an otherwise valid decisionmaking principle. As Bertram has sidestepped this criticism altogether, it does not appear necessary to become bogged down in a consideration of this argument. But it might be worthwhile to do so anyway.

Update II: For an assessment of the merits on the TCS brouhaha that runs counter to Bertram's views see this post over at Balloon Juice. B.J. also rounds up links to several other posts on the topic.

In League With The Devil

U.S. DISTRICT JUDGE Sam Kent of Galveston wants it known that he does not hate God.

* * *

The reason Kent wants this known is that some right-wing Web sites are painting him as an agent of Satan, and Tuesday their poisonous claims spilled into Houston's air waves.

A site called "issuesineducation.org," for example, blames Kent for the 9/11 attack on the World Trade Center:

"So when people ask where was God when this tragedy was happening? (sic) The answer is, He doesn't come in when He's KICKED OUT!"

Kent is subjected to this vitriolic nonsense primarily on the basis of a truly feeble understanding of a school prayer case over which he presided. The Chronicle explains why these accusations make no sense in light of Kent's actual rulings. But even if Kent's critics possessed an accurate understanding of the judge's rulings, their conclusions are absurd. Much as I admire Professor Leiter, I've always been inclined to regard his talk of the "Texas Taliban" as a bit overheated. Some people, however, seem determined to live up to his appellation.

This is not the first time that Kent has encountered public criticism for his courtroom conduct. See Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11 (2001). However, even Professor Lubet did not accuse Judge Kent of being in league with the Devil or ushering in the Apocalypse.

November 18, 2003

Attorney Access Fees

Beth Plocharczyk has posted a comment on a NY Times story about extra access fees being charged by doctors and their possible illegality. However, whatever legal issues might be involved appear to be a matter of contract. CNN features a similar but far more disturbing story about fees for access to professional services. It seems that courts are charging otherwise indigent criminal defendants a fee for access to a lawyer. The fees are de minimus, but they still potentially run afoul of the constitutional right to counsel. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.").

November 17, 2003

Law Clerks And Their Blawgs

Some time ago, I wrote about the ethical issues confronting federal law clerks who desire to set up shop on the web. I was reminded of the topic by Will Baude's most recent Twenty Questions for Bloggers feature, in which Stuart Buck was deposed. Buck was formally a law clerk on a federal court of appeals and ran into some blog-related difficulties:

2: Before your current blog, you had another blog, but you were forced to shut it down by your employers. Could you tell us a little bit more about what happened there?

Without revealing too many details, I was clerking for a federal judge at the time. I had told him about my blog, and he did not disapprove. But then some unknown person complained to another judge on the same court that I was engaging in "partisan political conduct." It was an erroneous charge. The ethics rules applicable to judicial clerks do ban "partisan political conduct," but examples of forbidden conduct are 1) running for office; 2) being involved with a political campaign; 3) hosting a political fundraiser, and the like, none of which were remotely applicable to my blog. Moreover, the ethics rules say that judges and clerks are positively encouraged to write about public topics, as long as they do not comment on pending cases. Nonetheless, the other judge raised a big fuss, and in the interests of judicial comity I was asked to forgo blogging for the rest of that year.

I think Buck is entirely right in his thumbnail assessment of the relevant ethical rules. What's remarkable about this episode is that one federal judge saw fit to interfere in the employment relationship between another judge and this other judge's law clerk. There is also something a little untoward about anonymous persons lodging complaints of ethical impropriety. Such charges are sufficiently explosive and debilitating that one ought to only make them if he/she is willing to associate his/her name and reputation with the accusations.

November 16, 2003

The Week In Review

Will Baude was kind enough to extend an invitation to write for Crescat Sententia last week. I enjoyed my temporary status as a Crescateer, but it is good to be back home too. Most of the last week's substantive posts were hosted over there. For those of you who missed them, I wrote about:

November 15, 2003

To Blog Or Not To Blog

The "blogosphere" is littered with blogging roadkill: blogs that were set up using the easy to use blogging software and then hastily abandoned as it became obvious A) no-one was reading them; B) they’re a lot of work to maintain; and C) you very quickly run out of things to say about your cat or pot plant or conspiracy theory.

A study by a survey company in the United States called Perseus found that of the four million or so blogs created using the eight major blog-hosting services at least 66 per cent had not been updated in more than two months. Over a quarter were not touched after the day they were created.

* * *

The bad news is that even if you manage to keep your blog alive, no-one will read it.

According to Clay Shirky, a web expert, traffic to blogs is governed by power law distribution. This means a tiny number of bloggers get read by an awful lot of people, while the vast majority get hardly any visitors.

There's some definite truth to much of what Kirkpatrick has to say, despite the jaundiced nature of his remarks. Like Venkat Balasubramani, I think that the blogosphere is generally overhyped. Indeed, I tend to share Brian Leiter's skepticism regarding the value of the majority of the blogosphere.

However, not all blogs are doomed to obscurity by any means. Blogging is merely online writing. Thus, having something worth saying with some frequency and being able to say it well are all that is required to succeed over time. Of course, I suppose that it all depends on how you define success. If succeeding consists of having Glenn Reynolds's level of traffic, then, yes, most blogs will "fail." I doubt very much that this is how most bloggers define success, if they define it at all, however.

Nor are all blogs a waste of cyberspace. Although complaints about the quality of the majority of blogs are probably accurate, this hardly says anything about the merits of blogging per se anymore than the low quality of most books says anything about the merits of reading and writing. As with all mediums, one has to decide what is worthwhile and dispense with the rest.

Where Kirkpatrick goes overboard is in his unremitting hostility to everything blog-related. For example, of blawgs he writes:

Lord help us, there are even blawgs, lawyers blogs, or—to use a more appropriate term—achingly dull wastes of cyberspace.

I can see why a non-lawyer might not share my enthusiasm for legal minutia and might choose to read something else. But if one is looking for legal news and commentary, the best that the blawgosphere has to offer is far better than the print media generally manages. When you read Eugene Volokh on the First Amendment, for example, you are getting legal analysis from an expert. How often can you say that of newspapers and run-of-the-mill periodicals?

November 14, 2003

When Attorneys Attack

Sometimes legal coverage in the press is maddeningly bereft of detail. This Associated Press story over at CNN is a case in point. According to the AP:

An attorney accused of burying an associate alive under the floor of his Manhattan apartment left court a free man Thursday after a prosecutor said she would be unable to prove kidnapping.

A state Supreme Court justice dismissed the kidnapping charge filed against Lawrence Omansky, 54, after Lawrence Schlosser, 63, said Omansky attacked him, tied him up and left him under the floor boards for more than a day.

An investigation tended to support the allegations, prosecutor Elizabeth Nochlin told the judge. But she also said the investigation raised issues about Schlosser's activities and credibility.

The story concludes by noting that it took over a day for Schlosser to escape from his purported confinement, but does not offer any explanation as to why the case fell apart. Prior detailed coverage of the alleged events is available here. This coverage reveals that the two men have been friends and business associates for thirty years. Methinks the explanation for why the kidnapping charge was dismissed must be mighty weird.

November 13, 2003

Gay Marriage in the U.S.

Ms. Morality has compiled a 50-state survey detailing the constitutional and legislative provisions regarding gay marriage in the United States. Her survey also has a column detailing relevant caselaw. In addition, it appears that she will be adding information on other countries that allow gay marriage. It looks to be a useful resource and promises to only get better over time.

November 12, 2003

Houston ISD

HOUSTON, Texas (AP)—The president of Houston's teachers union said Tuesday that district administrators consistently refuse to honestly report on-campus violence and that she plans to force the issue.

Houston Federation of Teachers president Gayle Fallon said the union will survey teachers and others in the district's 80 middle and high schools over whether principals fail to discipline violent and disruptive students to avoid having to report such statistics to the state.

If the findings show a consistent failure to comply with reporting requirements, the union will seek to suspend or revoke principals' education certificates.

Now I wonder what would make people question the integrity of HISD's administrators? What's really sad is that this dispute over crime statistics in a school district makes it sound like a juvenile prison system. Increasingly, that is apparently just how public school administrators view the situation.

November 11, 2003

Federal Employees to the Rescue

In what seems like an eternity ago, we were being assured of the advisability of federalizing all airport screeners. Shortly thereafter the superior credentials and training of these new federal employees were being touted. It turns out that the reality does not quite match the rhetoric. Picking up on an October New York Times story that I missed, the latest News of the Weird reports that:

In October, the U.S. Transportation Security Administration's inspector general released questions from the final exam for airport screeners, designed to measure the crucial, intensive training that the screeners had just completed. One question: "How do threats get on board an aircraft?" The supposedly challenging answers: "a. In carry-on bags; b. In checked-in bags; c. In another person's bag; d. All of the above." If that is too difficult, the inspector general also complained that 22 of the exam's 25 questions were repeats from previous exams and that some test-takers were briefed in advance.

November 10, 2003

The Crescat Clerk

Debating partner Will Baude has been gracious enough to extend an invitation to guest-blog over at Crescat Sententia this week. I'll attempt to post both here and there; however, if I seem unusually quiet here, you will now know where to find me.

November 09, 2003

Homosexual Adultery

By way of the Volokh Conspiracy, I am informed that the New Hampshire Supreme Court has handed down a rather peculiar decision. The case is In the Matter of David G. Blanchflower and Sian E. Blanchflower, No. 2003-050, __ A.2d __, 2003 WL 22525086 (N.H. Nov. 7, 2003). The majority of a closely split court arrived at the rather counterintuitive decision that homosexual sex may not constitute adultery. Here's the relevant legal and factual context from the court's opinion:

. . . The petitioner filed for divorce from the respondent on grounds of irreconcilable differences. He subsequently moved to amend the petition to assert the fault ground of adultery under RSA 458:7, II. Specifically, the petitioner alleged that the respondent has been involved in a "continuing adulterous affair" with the co-respondent, a woman, resulting in the irremediable breakdown of the parties’ marriage. The co-respondent sought to dismiss the amended petition, contending that a homosexual relationship between two people, one of whom is married, does not constitute adultery under RSA 458:7, II. The trial court disagreed, and the co-respondent brought this appeal.

. . . The narrow question before us is whether a homosexual sexual relationship between a married person and another constitutes adultery within the meaning of RSA 458:7, II.

RSA 458:7 provides, in part: "A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes:

. . . II. Adultery of either party." The statute does not define adultery. Id. Accordingly, we must discern its meaning according to our rules of statutory construction.

"In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Wegner v. Prudential Prop. & Cas. Ins. Co., 148 N.H. 107, 108 (2002) (quotation omitted). We first look to the language of the statute itself and, where terms are not defined therein, "we ascribe to them their plain and ordinary meanings." Id.

The plain and ordinary meaning of adultery is "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband." Webster’s Third New International Dictionary 30 (unabridged ed. 1961). Although the definition does not specifically state that the "someone" with whom one commits adultery must be of the opposite gender, it does require sexual intercourse.

The plain and ordinary meaning of sexual intercourse is "sexual connection esp. between humans: COITUS, COPULATION." Webster’s Third New International Dictionary 2082. Coitus is defined to require "insertion of the penis in the vagina[]," Webster’s Third New International Dictionary 441, which clearly can only take place between persons of the opposite gender.

On a purely intuitive level, this result seems plainly wrong. Excepting some alternative marital arrangements (e.g., "open marriages"), no spouse would fail to regard such acts as adulterous. Matrimonial vows frequently include promises to forsake all others. If a state is going to retain grounds for fault in divorce, it is difficult to understand why it would narrow such fault in this fashion. (The dissent, more or less, raises these issues in dwelling on the statute's purpose.)

In response to the majority's definitional rationale, the dissenters write that, "[w]hile we recognize that 'we first look to the plain and ordinary meaning of words to interpret our statutes[,] . . . it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.'" Interestingly, the dissenters do not contest the majority's definitions. They should have, because it's not clear that the majority's interpretation is correct on its own terms. That is, it's not obvious that the majority's plain and ordinary meaning analysis is right.

There is certainly nothing idiosyncratic about the court's chosen definition of adultery. Cf.Black's Law Dictionary 52 (7th ed. 1999) (defining "adultery" as "[v]oluntary sexual intercourse between a married person and a person other than the offender's spouse"); Merriam-Webster's Collegiate Dictionary 17 (10th ed. 1993) (defining "adultery" as "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband").

Where the court possibly goes wrong is in its definition of "sexual intercourse." For example, Merriam-Webster's defines "intercourse" to mean "physical sexual contact between individuals that involves the genitalia of at least one person." Merriam-Webster's Collegiate Dictionary 609 (10th ed. 1993). Moreover, it specifically follows up this definition with the following bracketed explanatory phrases: "heterosexual intercourse," "anal intercourse," and "oral intercourse." Id. Then and only then does the definition note that the term especially connotes the first definition of "sexual intercourse," which is defined as meaning "heterosexual intercourse involving penetration of the vagina by the penis: COITUS." Id. at 1074. However, the second definition of "sexual intercourse" also notes that the phrase may mean "intercourse involving genital contact between individuals other than penetration of the vagina by the penis." Id.

The definition of "intercourse" in Black's is similarly broader. See Black's Law Dictionary 815 (7th ed. 1999) (defining "intercourse" as "[p]hysical sexual contact, esp. involving the penetration of the vagina by the penis"). Black's offers no definition of "sexual intercourse."

In other words, the majority's result hinges on its choice of dictionary. Moreover, its dictionary of choice seems to be at odds with at least two others, one of which is legal in nature and both of which are more up-to-date. If one is attempting to ascertain the "plain and ordinary meaning" of words, it is rather odd to rely on a dictionary that is from 1961 to the exclusion of all others without offering some rationale. (The relevant statute appears to date from 1938, with non-material amendments having been made in 1957 and 1999.)

The majority's decision also potentially has an equal protection infirmity, in that persons can be determined to be at fault for divorce purposes due to heterosexual but not homosexual conduct. The majority attempts to explain away this problem by noting that:

Homosexuals and heterosexuals engaging in the same acts are treated the same because our interpretation of the term "adultery" excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that persons of the same gender cannot, by definition, engage in the one act that constitutes adultery under the statute.

Without having thought about this issue too hard, it's not obvious to me that this is anything more than circumlocution or misdirection. By defining "adultery" in the fashion that it does, the majority will be exempting homosexual extramarital relationships from the same legal consequences visited upon heterosexual ones in many cases. As heterosexual extramarital relations may often, perhaps generally, involve coitus, whereas homosexual relations simply cannot do so by definition, the notion that the same acts are exempted for both heterosexuals and homosexuals alike seems somewhat beside the point. Only heterosexuals are capable of "adultery" as defined.

It's difficult to adduce a rational reason for applying the adultery fault provision of the divorce statute exclusively to heterosexuals. However, the majority's position becomes even less rational once one realizes how it distinguishes amongst various heterosexual behaviors. In order to appreciate the full legal perversity of the majority's decision, consider, for example, heterosexual anal sex. If a wife found her husband in flagrante delicto with another woman, engaged in anal intercourse, that would not constitute "adultery" for purposes of the divorce statute. (Recall that "coitus," upon which the majority relies, requires penile penetration of the vagina.) Yet, if she returned home to find her husband with another woman, engaged in vaginal intercourse, then that would constitute "adultery." The fact that the majority's position leads to such absurd results, results that, in fact, fly in the face of our plain and ordinary usage and understanding of the term "adultery," is all the more reason to consider its defintional analysis suspect.

Afterthought: It occurs to me that, in identifying the plain and ordinary meaning of "adultery," the majority becomes preoccupied with the word "coitus," a word that appears in a portion of the defintion(s) of "intercourse" and "sexual intercourse." To the extent that the definition of "adultery" is thought to be indeterminate, it might be as or more relevant to identify synonyms for the term and explore their meanings. For example, the court might have focused on words and phrases like: "infidelity," "unfaithfulness," "sleeping around," "affair," etc.Roget's Super Thesaurus 17 (2d ed. 1998).

Update:Transblog, a blog devoted to"German-English legal translation," has an informative post discussing grounds for fault in English divorce law. Although homosexual infidelity is not considered "adultery" for fault purposes in English law, it does remain a ground for fault under the additional rubric of "unreasonable behavior." New Hamphire lacks this particular ground for fault. I wonder if any American jurisdiction maintains it.

November 08, 2003

McLawsuit?

McDonald's v. Merriam-Webster may be coming to a courtroom near you. So reports CNN. Apparently, the latter has added "McJob" to its dictionary. The CNN reports states that the term is defined as "'low paying and dead-end work.'" However, the Merriam-Webster website actually defines the term as "a low-paying job that requires little skill and provides little opportunity for advancement."

This latter characterization is less abrasive and, it seems to me, fairly accurate. My first job out of high school, but not my first job, was at a McDonald's franchise. It did indeed require little skill and offered little opportunity for advancement. This first circumstance was somewhat fortunate for me in that I was little skilled. The second circumstance was inconsequential, as I was merely killing time for six months until my military basic training began.

Although McDonald's is concerned about the purportedly demeaning nature of the definition, this does not necessarily appear to be the (sole) basis of any potential legal action. As the CNN story relates, McDonald's has also stated that it is concerned about possible trademark infringement. "McJOBS" is the name of the hiring program that McDonald's runs for "mentally and physically challenged people."

Given that (a) I know little about trademark law, and (b) McDonald's has not articulated the nature of its disparagement claim (defamation?), I am reluctant to opine on the merits. However, it does seem like any potential legal action would be an uphill battle. After all, Merriam-Webster's enterprise purports to be descriptive. That is, it merely documents English as it is spoken and written by the populace. (Some basic media research would probably indicate whether this was the case or not with reference to "McJobs.") If the word "McJobs" has, in fact, gained cultural currency then what real recourse would McDonald's have? It seems as if it would be shooting the messenger.

Thus, my initial impression is that McDonald's would likely not prevail on such claims any more than a civil rights lawsuit could be founded on the dictionary's inclusion of the word "nigger." See Merriam-Webster's Collegiate Dictionary 784 (10th ed. 1993). However, initial impressions (particularly those formed with acknowledged ignorance) can be quite mistaken. I welcome further input.

November 07, 2003

Schwarzenegger's Potential Legal Woes

Attorney General Bill Lockyer met with Schwarzenegger on Wednesday and the two discussed several matters, including allegations that the actor and former bodybuilder groped several women and the possibility that independent investigations by local law enforcement agencies could "hound" the new governor, said Lockyer spokesman Nathan Barankin.

In a news conference Thursday, Lockyer told reporters he urged Schwarzenegger to allow an independent third party to investigate possible criminal liability over the alleged incidents.

Barankin said the attorney general's office does not plan to conduct its own investigation because it's "up to local district attorneys and local law enforcement agencies," should they be warranted.

Lockyer is a Democrat, but he also voted for Schwarzenegger in the recall. So his behavior is not necessarily political. Whatever the motives, Arnold's alleged indiscretions certainly could be the subject of credible criminal investigations, unless some procedural bar exists (e.g., a statute of limitations).

Also of interest, Schwarzenegger's spokesman has accused Lockyer of violating the attorney-client privlege via his public remarks. CNN reports that:

. . . Schwarzenegger spokesman Rob Stutzman held a conference call and issued a statement saying Lockyer violated attorney-client privilege by divulging "the content of communication between himself and the governor-elect."

This raises an interesting question. As one might expect, California law appears to render the state attorney general the governor's lawyer—but only with reference to questions of law related to the governor's governmental role. See Calif. Gov't Code § 12519 ("The Attorney General shall give his or her opinion in writing to . . . the Governor . . . upon any question of law relating to their respective offices."). Presumably, such opinions would be protected by the attorney-client privilege. Another state court once shielded legal work product engaged in on behalf of the governor from a state Freedom of Information Act request due to attorney-client privilege. See McCartney v. Attorney General, 587 N.W.2d 824, 830 (Mich. Ct. App. 1998) (per curiam). I have been unable to find anything in the way of California law on this point.

However, are potential criminal investigations of a sitting governor for personal sexual behavior engaged in prior to the assumption of the office related to the office? Could the state's attorney general function as the governor's lawyer in such a matter, particular given his potentially conflicting duty to render opinions to district attorneys and city attorneys? See Calif. Gov't Code § 12519 (enumerating "district attorney[s]" in the same sentence as "governor" and additionally providing for written advice "to a city prosecuting attorney when requested, upon any question of law relating to criminal matters."). Does Schwarzenegger's status as governor-elect affect the analysis of these issues? Via a spokeswoman, Attorney General Lockyer has raised both of these very issues, asserting that he merely offered advice to a friend and that his friend is not yet the Governor.

Everyone's A Critic

Alas, he cannot write. He is a horrid stylist; he writes like someone mashing the keyboard with bratwursts; his politics have the sophistication of a preschool crayon drawing, and his self-confidence in his insights is matched only by his inability to see how fatuous his work often sounds. Mr. Knowles is often held up as an example of New Media, one of those outsiders who’ve wrested the mike from the old tired media. Usually I support that sort of thing, but if ever there was an argument for restricting the role of Critic to the white-gloved aesthetes . . . . His review of Matrix 3 proves that if you can’t say something coherent, just say it in purple-tinted boldface 20-point Arial . . . .

After that, Lileks stops being so nice. In this case, being less nice consists of taking Knowles seriously enough to address his points one-by-one. The results are painful.

Writing Versus Legal Writing

I sometimes get a bad rap for being too curmudgeonly. This criticism often strikes me as being akin to insisting that Oscar the Grouch is, you know, too grouchy. After all, the site is named The Curmudgeonly Clerk. But even I have to confess that the criticism sometimes has merit.

This issue was raised in a spirited fashion recently by Micah Schwartzman of Crooked Timber fame over some blistering criticism that I directed at Dahlia Lithwick. (See the first link above.) I readily and happily concede that I have come away from the debate with considerable respect for Schwartzman, who has a sharp mind and is a keen debater. It is a pity that he does not write more frequently. But despite lengthy discussion I still come away without the respect for Lithwick that he would impart. Having spent some time pondering this result, I am beginning to think that Schwartzman and I might be talking past one another. He writes:

I think the Clerk is missing out on what lots of other people see in Lithwick's writing—that she's playful, often tongue-in-cheek, less predictable than many commentators . . ., and that she makes general reading about the Supreme Court enjoyable for a large lay audience. She's not writing legal briefs; nor does she pretend to. She's writing journalistic columns about Supreme Court politics. And they’re usually pretty funny, sometimes racy, and always interestingly written.

Lithwick's writing a column for a general audience. She isn't writing law review articles, cert petitions, legal memos or briefs. No one is relying on her specifically for legal advice. Anyone who reads her knows that she’s offering her views of the law.

The ultimate difficulty I find with this sort of defense of Lithwick is that it amounts to arguing that Lithwick's columns are fine so long as they are not taken seriously in terms of their legal content, which is, more or less, my point (i.e., that Lithwick should not be taken seriously as a legal commentator). The difference really appears to be that I see this as grounds for condemnation, whereas Schwartzman thinks that Lithwick's project is sufficiently non-legal in character to exempt it from the sort of criticism that I am levelling. Even I recognize that Lithwick can write, she just doesn't write about the law with any sophistication. That's okay, if you aren't looking for legal analysis. I guess that I just expect more from a lawyer with her credentials writing a column that explicitly runs under the heading of "Jurisprudence."

Consent (Discon)Tent

Over at Begging to Differ, Steve opines on the Oberlin college experience. What caught Steve's attention was the "Tent of Consent" attraction at Oberlin's institutionally sponsored sexual carnival, Safer Sex Night.

Apparently, this sort of event is not unique at Oberlin. A 1998 Drag Ball also featured a "Tent of Consent." The Chaplain's office was also thoughtfully "transformed [in]to a fetish room" for the occasion.

Meanwhile, Will Baude expresses the opinion that it's all groovy, man. Well, actually, Will never gets around to using the word "groovy." But he does offer this closing statement: "This is college, folks. People have sex. And (thankfully) not just Leftists."

I'm not shocked by the notion that young people are having sex. Nor am I shocked that some of their behavior is risque once they are safely out from under their parents' watchful eyes. However, it is more than a little ridiculous for an educational institution to fund and sponsor such behavior.

I doubt very much that anyone requires institutional assistance with his or her sex life. One of the featured activities at Safer Sex Night was a live demonstration of homosexual oral sex. Funny, I seem to recall that homosexuals were successfully engaging in oral sex before Oberlin appointed itself their mentor. Indeed, they were so successful that some states, like Texas, flew off the handle and criminalized their behavior. See Lawrence v. Texas, 123 S. Ct. 2472 (2003). College students will, no doubt, find their way sexually even if they cannot explore fetishes in the chaplain's office.

This isn't about prudishness. It is about the role of higher education. The sexual shenanigans that accompany college life are peripheral to, not part of, universities' mission. Universities may have some obligation to not get in the way of their adult students' libidinal impulses, but it is an obnoxious waste of scarce educational resources for institutions to devote funds to these activities.

Update: There has been a lot of great commentary on this story elsewhere. Ampersand of Alas, a Blog thinks that my curmudgeonry on this topic reflects a big misunderstanding on my part. However, J.H. Huebert's post suggests that my surmise that the Oberlin student body does not need institutional assistance with their sex lives might have some merit after all, notwithstanding Anthony Rickey's contrary assessment. (Huebert's and Rickey's posts are laugh-out-loud funny, by the way. So if you need a dose of humor . . . .) And, last but not least, Will Baude has officially declared that, "It's all groovy, man."

"I don't agree with her politics. I don't agree with some of her background," said Mr. Sharpton, who is seeking the Democratic nomination for president. "But she should get an up-or-down vote."

* * *

Mr. Sharpton echoed the concerns of many conservatives—especially black conservatives—that Justice Brown is being opposed because she doesn't conform to the Democratic ideology that many blacks espouse.

"We've got to stop this monolith in black America because it impedes the freedom of expression for all of us," Mr. Sharpton said in a television interview conducted by Sinclair Broadcasting yesterday. "I don't think she should be opposed because she doesn't come from some assumed club."

At least one other black leader was (rightly) confounded by Sharpton's remarks; Wade Henderson of the Leadership Conference on Civil Rights evinced disbelief that Sharpton could have made the remarks attributed to him. It's not as if Sharpton has displayed a similarly nuanced perspective of racial issues in the past. As they say, politics makes for strange bedfellows.

Speaking of strange, the Times article points out something else that is very odd:

At a press conference yesterday, Mr. Bond and other black leaders portrayed Justice Brown as a "far right-wing extremist" and "outside the mainstream."

They were asked how Justice Brown could be described as a right-wing ideologue when 76 percent of California voters cast ballots to return her to the bench in 1998, the highest percentage of any justice in that retention election.

I'm a little hardpressed to articulate a response to that question myself. Justice Brown and the California electorate are odd bedfellows as well. She was originally appointed by Pete Wilson and is an obvious conservative. Do any Californians have an explanation?

November 05, 2003

Creative Legal Fees

Professor Muller cites yet another case of alleged sexual impropriety on the part of an attorney. The Casper Star-Tribunereports that:

According to an affidavit of probable cause filed by Worland Police Officer J.D. Fowler, Berryman was representing the woman, whose identity has not been released, in a custody case.

The document alleges that on Sept. 24 when she was meeting with Berryman regarding custody of her daughter, she questioned payment options.

Berryman is alleged to have said, "Well, you have two options. You can pay me with sex, or with money. I prefer option one."

Regrettably, this is not unheard of. One lawyer disciplined for this sort of behavior even suggested a fee schedule that correlated specific sexual acts with payment amounts. Cleveland Bar Ass'n v. Feneli, 712 N.E.2d 119, 120 (Ohio 1999) (per curiam). Unlike the Berryman case, Feneli was a disciplinary proceeding. Feneli received an 18-month suspension for his misconduct, of which six months were stayed. Id. at 121. The Star-Tribune indicates that disciplinary charges may follow in the Berryman case as well. Unlike Berryman, Feneli was not criminally prosecuted. Id. He did, however, end up being a defendant in a civil suit, which was settled out of court, as a result of his conduct. Id. As you can see, there can be a variety of consequences—civil, criminal, and/or disciplinary—for attempting to turn one's clients into prostitutes.

There's Something More About Miriam

Enthymeme of the blog Peccaviconcurs that there is a potential assault claim to be made in any case involving There's Something About Miriam. Unlike me, however, Enthymeme dwells on recent English caselaw. For example:

[T]he only sorts of fraud which so far destroy the effect of . . . consent . . . are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should prefer myself to say that consent in such cases does not exist at all, because the act consented to is not the act done.

Whether or not there is a tort in the present case would therefore depend on whether there is fraud as to the identity of the person who is the alleged perpetrator of the (alleged) tort. . . .

So from all appearances, it seems that American and English law remain comparable in this regard. That is, there is most likely something tortious about Miriam's conduct. Enthymeme also harkens back to Blackstone's definition of "battery." I think it is fairly safe to say that William Blackstone would be flabbergasted by the facts under consideration.

Update:On second thought . . . it does seem that English law has the very same quality/nature distinction regarding consent that I previously discussed regarding American law. However, it's not altogether clear that liability would result under English law nonetheless. Consider, for example, this passage from R. v. Naveed Tabassum [2000] 2 Cr. App. R. 328 CA (Crim. Div.), which involved a defendant who had been conducting breast exams on false pretenses:

Mr Macdonald [the defendant's attorney] accepts that there will be no genuine consent if, in the present circumstances, a woman is misled either as to the identity of the man who does the acts complained of, or as to the nature and quality of the act done. But, he submits, the nature and quality of the act, albeit not merely related to the act itself, but including the immediate conditions affecting its nature, does not, as he put it, "extend back" to the qualifications of the defendant.

Mr Macdonald referred to Richardson (Diane) [1998] 2 Cr.App.R. 200, [1999] Q.B. 444, in which the patient believed that she was receiving dental treatment which otherwise would have given rise to an assault occasioning actual bodily harm, from a dentist who had in fact been struck off the register. The Court in that case held that the identity of the defendant was not a feature which, in that case, precluded the giving of consent by the patient. Mr Macdonald submits that, because the identity of the defendant was different from that which the patient believed it to be, that changed the nature and quality of the act, yet, in that case, Richardson, the conviction was quashed.

He submits that to impose criminal liability in the circumstances of the present case would be to extend the criminal law beyond its existing boundaries. In his written submissions, he submitted that the case law establishes that, where an undoubted consent is given, it can only be negatived by deception or mistake and if the victim has been deceived or is mistaken as to the identity of the perpetrator, or the nature and quality of the act is different from that for which consent was given. Consent is not negatived merely because the victim would not have agreed to the act if he or she had known all the facts. In Clarence, the wife would not have consented to sexual intercourse with her husband if she had known that he had a venereal disease. In Richardson , the patients would not have consented to dentistry if they had known the dentist had been struck off. In Linekar, the prostitute's consent to sex was not negated by cheating over payment.

On behalf of the Crown, Mr Grout-Smith, who prosecuted in the court below, in helpful written submissions, submits that the judge was right to rule that consent to an act that is different in nature from the act performed is not a consent to the act performed. He relies on Clarence, and a decision of the Saskatchewan Court of Appeal in Harms [1944] 2 D.L.R. 61.

The judge correctly ruled, he submits, that the complainants, if their evidence was accepted, consented to a medical act and not a sexual act. As the defendant had no medical qualifications, he could not have been touching the complainants' breasts for a proper medical purpose. The judge was correct to rule that sexual motive was irrelevant—as to which see Court (1988) 87 Cr.App.R. 144, [1989] A.C. 28 and C. [1992] Crim.L.R. 642.

The direction to the jury that they could only convict on any count if they were sure that the complainant only allowed the appellant to touch her breasts because she thought he was medically qualified, was sufficient to ensure that they would only convict if they were sure that the complainants consented to acts medical in nature.

* * *

In our judgment, the pertinent authorities, in relation to Mr Macdonald's first submission, can properly be analysed in this way. The wife in Clarence, and the prostitute in Linekar, each consented to sexual intercourse knowing both the nature and the quality of that act. The additional unexpected consequences, of infection in the one case and non-payment in the other, were irrelevant to and did not detract from the women's consent to sexual intercourse.

* * *

. . . The nature and quality of the [instant] defendant's acts in touching the breasts of women to whom, in sexual terms he was a stranger, was unlawful and an indecent assault unless the complainants consented to that touching.

On the evidence, if the jury accepted it, consent was given because they mistakenly believed that the defendant was medically qualified or, in the case of the third complainant, trained at Christie's and that, in consequence, the touching was for a medical purpose. As this was not so, there was no true consent. They were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality. Flattery and Harms, which we have earlier cited, are entirely consistent with that view because, in each of those cases, the woman's consent to sexual intercourse was to a therapeutic, not a carnal, act. A similar principle underlies the decision in Rosinski (1824) 1 Mood. 18, 168 Eng.Rep. 1168. It follows that, in our judgment, the judge's ruling was correct.

Id. at 334-37 (bold font emphasis added).

In other words, the Tabassum court is rejecting the position that the the sorts of mistakes found in American cases like Neal and Hogan may vitiate consent (i.e., that these sorts of mistakes do not go to the quality/nature of the conduct consented to). Does that mean that an English court would find that consent was not vitiated in a case in which there was a misrepresentation regarding the defendant's biological sex in a civil lawsuit? I don't know for sure, but Tabassum's less liberal approach to assault does not bode well for such a claim.

At any rate, as Steve suggests, the most viable cause of action would probably be along the lines of intentional infliction of emotional distress. One wonders what the law is with regard to the English equivalent cause of action. Anyone happen to know?

Interrogation, Torture, and Terror

Now this Washington Post story merely recites as yet unconfirmed allegations. However, if even a mere tenth of it turns out to be accurate, isn't that one-tenth too many? Extraterritorial renditions of this nature seem fundamentally un-American to me.

Once upon a time, I was trained as an interrogator for the United States Army. When I tell people this, they always make jokes about rubber hoses and the like. Everyone is always surprised to learn that the very first thing Army interrogators learn about is the Geneva Convention. We spent two weeks covering it. And whatever might have once been the case, the Army is not kidding around: you will end up in Leavenworth for the mistreatment of enemy prisoners of war. Consider, for example, the pending prosecution of Colonel West.

There is a war on terror being waged to be sure. But even wars have rules. It will not do to have U.S. intelligence agencies be complicit in the torture of suspected enemies. And frankly, when I encounter government officials cooing that, "'[t]he Syrian government has provided some very useful assistance on al Qaeda in the past,'" I begin to wonder what it means to be at war with terror if one of our allies is Syria.

Scalia The Terrible?

In 1986, Antonin Scalia was confirmed to his associate justiceship on a Senate vote of 98-0. Julia Virtullo-Martin, Justice & Antonin Scalia, Commonweal, Mar. 28, 2003, at 11, available at 2003 WL 10223090. His confirmation hearing was, apparently, uneventful. Id. Senator Metzenbaum (D.-OH) "announed that Scalia's conservatism was irrelevant and that all that matttered was his 'fitness.'" Id. Although he had misgivings, Senator Kennedy (D.-MA) concluded that it was impossible "'to maintain that Judge Scalia is outside the mainstream.'" Id.

Kennedy referred to him as "Judge," because Scalia had been an appellate judge on the United States Court of Appeals of the District of Columbia since 1982. A Westlaw search turns up 105 opinions authored by Scalia during his tenure on the court of appeals, so his views could hardly have been a complete unknown. Indeed, a PBS profile states of his lower court tenure that "his philosophy of strict constitutional interpretation and strong conservative values made their mark." It has been claimed that the Senate was preoccupied with Rehnquist's elevation to the position of Chief Justice, but this seems like an awfully weak explanation—unless the confirmation process has undergone that radical of a transformation between then and now—particularly given that Rehnquist himself was confirmed to that position on a vote of 65-33.

Yet today, when political liberals wish to demonize judicial nominees whom they do not wish to see confirmed, they compare them to Scalia. For example, the National Organization for Women compared filibustered nominee Miguel Estrada to the justice. Who has changed in the interim, Scalia or liberals, or both? What accounts for the sort of alarm that his very name evokes in certain quarters?

Update: Professor Leiter offers his assessment. Leiter identifies two basic factors. First, no one realized how conservative Scalia was at the time, in part due to his modest academic record, but fifteen years on the Court have added clarity. Second, in 1986 no one understood that there was a transformation of the American judiciary underway. Leiter reminds me of Judge Posner's candid appraisal of the situation: there was no opposition, "'because no one yet realized that Reagan was stacking the courts with conservatives like me.'"

November 04, 2003

Rape Accusations

Over the course of the last month or so, I have devoted a large number of posts to the topics of rape and consent, both of which have been much in the news of late. Given the heinous nature of the crime, I am convinced that the punishment involved should be severe for reasons of retribution and deterrence alike. But I am equally loathe to see the procedural safeguards afforded to defendants eroded in an overly rhadamanthine pursuit of justice due to the potential for false accusations.

This crime is hard for me because of personal experience and conflicting views on what it means to actually rape someone. The reason for this conflict is that, in the space of one month, I both comforted and helped a friend recover from a traumatizing rape, and was almost accused of the act myself.

His entire post is worth reading. I imagine that readers who find my analytical, academic approach to the issue to be too cold might appreciate the Ghost's presentation more.

Credentials, Credibility, Credence

Some related replies in response to my dissection of Dahlia Lithwick's most recent anti-Scalia screed raise some interesting points. I used some strong language in condemning Lithwick's analysis and some have taken exception. For example, Venkat Balasubramani writes:

The Clerk's personal attack (Lithwick is a commentator b/c she couldn't cut it as a lawyer) is a bit unwarranted, and is of the variety that is least effective coming from a lawyer.

As a non-lawyer person who still likes to try to say things about law, your criticism of Lithwick sent a slight chill up my spine.

Microsoft Word's word count feature places the text of my initial post at just over 2,000 words, so I am not sure how useful it is to consider the remark in question completely outside of its context (i.e., it's not as if my critical assessment of Lithwick's abilities was rendered without any sort of substantive justification), but the actual words that appear to have raised eyebrows are:

Legal details are not her forte, which may explain why she writes about the law rather than practices it.

I'll be the first to confess that I occasionally confuse the customs and rules of Australian rules football for those of civil discourse. I am a firm believer in robust, muscular debate, but this rhetorical style can admittedly lead to excesses. In this particular instance I do not believe it has led to excess, however. This is a judgment call, of course, and mine is a subjective one. But I'll do my best to outline my thoughts on the matter in a fashion that is comprehensible if not conciliatory.

To be concise: If attorneys practiced law in the manner that Lithwick practices legal journalism, they would find themselves embroiled in malpractice suits and haled before disciplinary boards. Consider, for example, Lithwick's discourse on consent in the context of rape and then compare it with my explication of the actual law involved here and here. Now, as a blogger, I have some comparative advantages. For example, I may devote as much space as I care to to the issue. But I also have the comparative advantage of having some idea of what I am talking about regarding the state of the law on consent, whereas Lithwick does not. But don't take my word for it. Read the linked posts and decide for yourself. The conclusion, I think, is unavoidable, however. You would not rely on the analysis offered by Lithwick in your own personal legal affairs. So why should readers rely on her assessments for their knowledge of contemporary legal issues?

My assessment in this regard is not particularly idiosyncratic, by the way. Although Adam White, for example, enjoys Lithwick's prose, he has characterized her talent for legal analysis in rather unflattering terms. This view is not confined to conservatives either. I recall having a discussion with a well-heeled left-of-center lawyer who viewed Lithwick in much the same manner.

Lithwick brings to mind Brian Leiter's paraphrase of Karl Kraus in a similar context: "No ideas and the ability to express them: that's a journalist." Of course, the problem often isn't so much lack of ideas as lack of knowledge, though the two phenomena often operate in tandem. In Lithwick's case, however, she frequently has no shortage of ideas, but unfortunately they tend to be impoverished by her frail grasp on the relevant details, legal and otherwise. (Her respective columns on Scalia and consent and my critiques thereof—linked supra—give a fair indication of what I have in mind.) Regrettably, to borrow another rhetorical gem from Leiter, the less Lithwick knows the less she seems to know it too.

I do not know many details regarding Lithwick's credentials. She is identified as a senior editor at Slate. Her staff biography lists a stint as a lawyer at "a family law firm" and says that her J.D. was obtained from Stanford. A Lithwick fansite maintained by Stephanie Tai adds that she clerked for a federal appellate judge. Of course, the realization that analysis this flawed is coming from someone with this background is hardly comforting. Lest you be lulled into a false sense of security by credentials, it's probably useful to recall that Ann Coulter received her J.D. from Michigan and also clerked for a federal appellate judge. It doesn't change the fact that her writing is scurrilous nonsense does it?

The law is frequently difficult to write about, particularly if one is also writing for laymen. Laymen themselves are ill-equipped to intelligently write about the law. (Becoming a lawyer does not require three years of education followed by years of informal professional mentoring for nothing.) One of the more painful tasks in the life of a lawyer is trying to decipher what is actually going on in any given case based on accounts of it in the popular press. A combination of ignorance, intellectual laziness, and political prejudice too often transforms press accounts of legal proceedings into grotesque caricatures that only the most extreme variety of legal realists could appreciate. (This is particularly true of constitutional cases.)

But credentials alone are not a sufficient guarantee of the accuracy of a writer's legal analysis any more than age is the sole precondition of wisdom. Indeed, a J.D. is not the sole qualification for writing about legal affairs, though it is a highly desirable one. If confronted with a complex legal problem, a reasonable person would retain the services of a lawyer much as one would see a doctor regarding a serious medical ailment. But it's one thing to have a lawyer and another altogether to have a good lawyer. As I see it, the same reasoning is applicable with regard to legal journalists. Over the course of a couple different posts, I have found Lithwick sorely wanting. I have not been shy about the reasons for this assessment. Readers are free to disagree, of course, but I do not think that they can fairly claim that I have not offered substantial reasons for my low opinion of Lithwick's writing. My comments may have been less than nice, but how does one say what I have said in a polite fashion?

Update I: Micah Schwartzman of Crooked Timber has lodged a complaint in the comments. I respond in more detail in the comments section. However, I did want to address a couple of Schwartzman's claims here. He writes:

Your post is unbelievably defensive—so much so that it's pretty obvious you think you have to do some backpeddling here.

I find this to be a rather remarkable debating device. Schwartzman's basic premise appears to be that my defense of my original post in the face of criticism constitutes an admission of the criticism's validity. Don't argue with Mr. Schwartzman, folks, doing so only proves him right!

Schwartzman is also appalled by my "ad hominem." I address this concern in the comments, but I cannot help but take a moment to laugh at Schwartzman's particular claim:

I don't think I've seen a worse example of ad hominem attack in a long time.

Apparently, he does not get out much, or read Dahlia Lithwick's columns. In the column that I took her to task for, Lithwick characterizes Scalia as "more Jeremiah than Judge," describes his public speaking as "insidious," "pedantic," and "benighted," and writes that his originalist views "cast[] himself, rather ghoulishly, as crypt-keeper rather than as judge." With regard to Scalia's character, she opined that, "Scalia comes across as similarly burdened; beaten down by the weight of his own inevitable rightness." For readers who find Lithwick to be too subtle, Slate helpfully accompanies her column with a drawing of a raving Scalia that is as cartoonish as her written depiction of the justice.

So I am to be taken to task for dealing harshly with Lithwick, eh? Silly me, I guess I forgot my manners. Such treatment is reserved for associate justices of the Supreme Court, not esteemed journalists.

Update II: Brett Marston has added a lengthy and thoughtful rejoinder that sets out to demonstrate that Lithwick has not misconstrued Scalia's supposed uniquely controversial role. He identifies his thesis as follows:

The main problem I have with the Clerk's account is that the case against Lithwick's portrayal of Scalia's public cultural jeremiads has not been proven. The Clerk wants to claim first of all that it is a betrayal of journalistic accuracy to say that Scalia is more apt to speak on "controversial issues" than his fellow Justices. You don't need to do a word count of Scalia's public speeches to realize that the Clerk is making a strange claim. Scalia has a reputation for being a cultural warrior on and off the bench. He has earned that reputation, even reveled in it and tried to promote it himself.

His post is worth reading in its entirety. But I do think that it has some real problems. This bit about Scalia's view of himself as a "cultural warrior" and the promotion of such a view of himself, for example, is bunk. On the contrary, Scalia does not view himself in this vein; indeed, this is how he sees his opponents on the Court. See Lawrence v. Texas, 123 S. Ct. 2472, 2497 (2003) (Scalia, J., dissenting) ("It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."); Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting) ("I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.").

Scalia's less-than-objective self-assessment is not necessarily correct, of course. But it seems to me that an earnest exploration of his views must begin by taking them seriously, by seeing the jurisprudential world from his perspective. Marston's analysis begins where it should end. "Cultural warrior" is Marston's view of Scalia, not Scalia's own.

Without deciding the veracity of this description of Scalia, let's assume its truth for a moment. If Scalia is, as Marston believes, a cultural warrior, then what, pray tell, are the justices with whom Scalia disagrees on controversial issues like homosexuality and affirmative action? Are they somehow non-combatants? With reference to the Court's actual decision-making, it seems to me that this cultural warrior business is much like charges of judicial activism—it's what the other side does.

Whatever the case may be on the bench, Marston clearly views Scalia as being like no other justice when it comes to his public speaking, maintaining that the other justices do not speak on similarly controversial issues and do not do so in an impassioned manner:

The Clerk then tries to argue that comments by Justice Stevens about his aborted movement toward recusal in the affirmative action cases also indicate a willingness on the part of Stevens to engage in the same kind of public intellectual activity as Scalia. The sad truth, however, is that Stevens's remarks were only really interesting for those few folks who get excited about insider baseball on the Supreme Court. If you're on the inside, then what Stevens said might be crucial and controversial. If you're not, then . . .*yawn* Try the Stevens story on your family and see what kind of reaction you get! Lawyer families don't count.

Marston likewise regards the other justices' public utterances regarding the use of foreign law as persuasive precedent as noncontroversial for similar reasons. There are a couple of difficulties with this riposte. Marston's argument amounts, in large part, to the contention that the other justices' remarks are not in the same league, because the lay public fails to understand them to be so. But that's hardly a suitable criteria for determining the importance and character of legal statements. The debate over homosexuality, for example, is a high profile issue and will garner more heat and attention, but that's probably not a very reliable indication of relative legal significance. At any rate, Justice Scalia is not the only justice who has publicly spoken about an undeniably controversial decision after-the-fact. (Recall that much of Lithwick's argument focused on Scalia's ISI speech, which discussed Lawrence after the case had been decided.) The ink was barely dry before Justice O'Connor began publicly discussing the substance of the Michigan affirmative action decisions.

Marston also takes me to task for dwelling solely on Scalia's death penalty remarks where his Georgetown speech is concerned:

It should be recalled that Scalia's speech at Georgetown—the one referenced in Lithwick's article—dealt primarily with how mid-century liberals on and off the bench had ignored the fact that American law is based in a specifically Judeo-Christian heritage. Scalia's death penalty comments were in response to a hostile question from the audience. Scalia was there to argue that the separation of church and state has gone too far. Seems to me that you're missing the forest for the trees if you try to interpret Scalia's short remarks on the death penalty—themselves subject to multiple interpretations as soon as you see that Scalia's conception of the judicial role is not the only issue here by far, even on his own account—as the only interesting or controversial thing he said that afternoon.

What I find odd about this particular line of criticism is that it takes me to task for limiting my criticism of Lithwick to the limited bit of the Georgetown speech that she herself had addressed. Recall that I was criticizing Lithwick's caricature of Scalia, not offering a fulsome recital of Scalia's speech. In my original post, I wrote that Scalia's views were far more nuanced than Lithwick's article indicates and offered some evidence from Scalia's oeuvre. I take it that even Marston concedes the validity of this general criticism. After all, he characterizes Scalia's position on church and state as an argument "that the separation of church and state has gone too far." Lithwick, in contrast, writes that Scalia's design is to the eradicate the separation betwixt church and state (i.e., "This, then, is the insidious and brilliant part of the Scalia speaking tour: Merely by virtue of his public role he is actually tearing down the wall between church and state every time he opens his mouth. Which is precisely what he wants.").

In addition, Scalia's remarks on the death penalty are not subject to multiple interpretations, unless, of course, one means the correct one and a host of incorrect interpretations. I've offered some additional evidence and a rationale for my view of Scalia's death penalty remarks. If others are equally plausible, why does no one adduce a reasoned defense of one? Why hasn't anyone explained away the additional context I provided? I'll tell you why: Because viewed in context, particularly in the context of his more extended remarks on the matter, there is no doubt that Scalia's death penalty remarks were about the judicial role and function. Due to the detail and length that this particular topic merits, I will post on it separately in the near future.

Lastly, Marston makes an argument that is of a piece with some of his other contentions:

Impartial is here understood to be more broad than the technical requirements of judicial ethics. Indeed, to the extent that you confuse the technical requirements with the broader notion of impartiality, you reveal yourself as a legal culture insider. Nothing wrong with that, but the interesting discussion has to be a broader one, and it's clear that Lithwick intended to make a contribution to that broader discussion.

This brings to mind the ubiquitous lexical dictum of Humpty Dumpty. The problem with this take on Lithwick's piece is that she herself conflates the legal standard and what might be termed as the defintion of "impartiality" in common parlance in her discussion, noting, for example, "that the body of [Scalia's] speeches and addresses makes it clear that he appears anything but 'impartial' as is seemingly required by the law." Moreover, if one is going to chastise a justice for his public behavior on the basis of "impartiality" it seems to me that the actual legal definition is the only relevant one.

Martston's apparent contention to the contrary is akin to arguing that public discussion of the merits of Clinton's impeachment need not have concerned itself with the legal understanding of "high crimes and misdemeanors," but rather could have proceeded on some other understanding. Such a debate could occur, but it would be ignorant and not particularly useful. It's important to recall that Lithwick is generally arguing that Scalia's behavior is improper for a sitting justice. She is, more or less, leveling an accusation of impropriety. It's hardly fair to level generalized accusations of partiality, based on a supposed societal understanding of the term's meaning, particularly when one is willing to overlook displays of "partiality" with which one is comfortable (e.g., Kennedy's remarks on confirmation).

Update III: Serendipity! Professor Reynolds points out this Tech Central Station column decrying the increasing reliance placed foreign law by our Supreme Court and public remarks in defense of this trend offered by Justices O'Connor and Ginsburg. Reynolds chimes in with his own commentary:

These sorts of sentiments will do more to delegitimize the Supreme Court than just about anything else I can imagine. I have no idea what the Justices are thinking in making such statements, and I strongly recommend that they think again.

One can dissent from Reynolds's assessment, but I think that this gives some indication of how controversial this topic actually is. Moreover, Reynolds for one does not think this a matter of "inside baseball" and posits that it will harm the Court's prestige among the general public. If this issue is not deemed sufficiently controversial, then I can only assume that "controversial" must be being employed in some entirely new sense.

November 03, 2003

Monday Night Taxes

I am watching Monday Night Football. A moment ago, Al Michaels aked if fines levied by the league would be tax deductible. John Madden replied that they are deductible with great certitude.

I like Madden and all, but I typically do not rely on him for tax analysis. (He may be right, of course.) Does anyone happen to know whether he is correct and, if so, why? Without conducting a bit of research it seems like a fine would effectively be a reduction in net income, but I'm not sure whether that would make it a deduction per se or just result in less taxable income. (And why, by the way, would an NFL player be allowed to deduct fines any more than a truck driver could deduct traffic fines . . . .)

Obviously, I make no pretense of knowing the answers to these questions. I could, of course, peruse the Internal Revenue Code for guidance. But if you think that I am curmudgeonly now, imagine me after spending an evening with the Code.

Topic Du Jour

There's much ado about Miriam in my small corner of the blogosphere. It's understandable why her erstwhile suitors are less excited, however. I blogged about this topic yesterday and have appended two updates to the original post since, the second of which is fairly extensive.

In the meantime, The Mirror has released a story with further details, which also discusses a lawsuit aimed at the creator of Girls Gone Wild that likewise raises the issue of consent in meaningful and interesting ways. Regarding this latter suit, The Mirror relates that:

Parents of six girls aged 15 to 17 want £30,000 damages for child abuse from Joseph Francis, creator of Girls Gone Wild, which shows scantily clad girls partying and exposing their breasts at college events across America.

They claim he paid two girls to engage in sexual conduct in a shower. His employees are accused of giving a 16-year-old drink spiked with "drugs or stimulants" before she was coerced into sexual conduct with a friend.

For posts offering contrary views on the flap over There's Something About Miriam, see the posts (and comments) over at Alas, a Blog and CrescatSententia. Steve has posted of a photo of Miriam over at Begging to Differ as well.

November 02, 2003

There's Something About Miriam

Lawyers acting for the six men trying to stop Sky broadcasting a reality show in which they are seen unwittingly kissing and caressing a male transsexual are planning a litany of legal charges against the broadcaster, including conspiracy to commit sexual assault.

* * *

The men claim they were tricked into kissing, cuddling and holding hands with Miriam and say it was only after three weeks of filming that they were told the beautiful woman was, in fact, a man.

While viewers would know from the start that Miriam is a male-to-female transsexual, the contestants—who include a Royal Marine commando, a ski instructor and an ex-lifeguard—only discover the truth when Miriam picks the winner and then lifts up "her" skirt.

The bold font emphasis is mine. The men in question want the project shelved and are asserting, among other legal claims, a cause of action for sexual assault.

Based on these details, PinkDreamPoppies writes:

Now, I’m not an expert on sexual assault laws, but it seems to me that the plaintiffs in this case don’t have a legal leg to stand on. Their kissing, cuddling, and fondling of Miriam (a pre-operative transsexual) was entirely consensual on their part (as near as I can tell) and is no more sexual assault against them than if they had picked up Miriam in a bar and taken her home with them.

I am not qualified to make any representations about the state of English law. However, I have been discussing sexual assault in American law at some length recently, and I think that PinkDreamPoppies greatly underestimates the merits of a claim for civil law assault under these circumstances. Across the Atlantic, in the United States, the plaintiffs' lawsuit would hardly be frivolous.

Although he does not address the topic in terms of the law, Will Baude identifies the salient issue in his prior post on the matter. PinkDreamPoppies sees unambiguous consent; however, there is substantial question as to whether there is informed consent. Accepting the account of the plaintiffs for purposes of discussion, deceit as to Miriam’s actual sex was the very plot of the show. Indeed, it seems that the show’s producers must concede this, if The Guardian story is accurate. So there appears to be no real dispute as to the critical issue.

What makes me think that the deception in question is the critical issue? Well, consider the case of Neal v. Neal. In Neal, one spouse sued the other for, among other things, "battery in the form of non-consensual sexual intercourse." 873 P.2d 871, 873 n.1 (Idaho 1994). The relevant details are as follows:

In January of 1990, defendant Thomas A. Neal filed for divorce after his wife became aware that he was having an extramarital affair. Mary Neal, his wife, counterclaimed for divorce and also asserted tort claims against Thomas Neal and Jill LaGasse. The gravamen of the claims against Thomas Neal and Jill LaGasse center upon allegations of an adulterous relationship between them.

* * *

Finally, Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.

Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. White v. University of Idaho, 118 Idaho 400, 797 P.2d 108 (1990). The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Id.Further, lack of consent is also an essential element of battery. W. Prosser & W. Keeton, The Law of Torts § 9 at 41 and § 18 at 112 (5th ed. 1984). Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery. W. Prosser & W. Keeton, The Law of Torts § 18 at 119; Bowman v. Home Life Insurance Co. of America, 243 F.2d 331, 333 (3d Cir.1957).

The district court concluded that Thomas Neal's failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal's consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court's reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the "consented to" act would never occur.

Mary Neal's affidavit states that: "[I]f the undersigned had realized that her husband was having sexual intercourse with counterdefendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive." The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal's affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.

Id. at 873, 876-77 (bold font emphasis added).

Obviously, one might reasonably consent to sex with a woman but refuse consent if appraised of the fact that the "woman" in question is a pre-operative transsexual. Under circumstances in which this fact is explicitly and intentionally withheld purely for entertainment purposes, it does not seem a great stretch to consider any resulting touching a battery on the part of Miriam, a battery which the television network facilitated.

Intentional infliction of emotional distress also seems a likely and potentially meritorious cause of action in American jurisdictions. The plaintiffs have apparently asserted the English equivalent (i.e., "personal injury in the form of psychological and emotional damage") Sky may have doomed itself in this regard inasmuch as it offered the contestants psychological counseling after production ceased. If that's not an admission, I don't know what is. In addition, there appears to intensely damning evidence that corrborates the emotional tumult experienced by the men. For example, The Mirror has reported that, "[a]ppalled production workers broke down and cried because the men were so shaken when the trick was revealed. Some of the crew do not wish to be named in credits . . . ." Given the track record of television shows that unexpectedly confront participants with undesired and unexpected homosexual romantic entanglements, Sky ought to have known better. See Graves v. Warner Bros., 656 N.W.2d 195, 198-99 (Mich. Ct. App. 2002) (reversing multi-million dollar judgment for relatives of murder victim killed by fellow Jenny Jones Show guest after victim informed other guest on-air of his homosexual romantic crush).

PinkDreamPoppies attempts to excuse Sky's conduct by subsequently arguing in a comment that:

The most important point I'm trying to make, and want to repeat it to be clear, is that if this had happened with six guys in a bar, a preoperative transsexual, and those six guys' friend, the case would be laughed out of court.

It is not clear that this is an accurate statement. Indeed, if the Neal case is any indication, the contestants' legal action is far from frivolous. Neal would seem to indicate that the counterfactual scenario envisioned by PinkDreamPoppies would likewise be actionable, as informed consent is the issue where battery (i.e., sexual assault) is concerned. An intentional infliction of emotional distress cause of action would also likely remain actionable under PinkDreamPoppies' scenario so long as the same intentional deceit is present. The only real difference between the events as they unfolded and this alternative, hypothetical scenario is the public nature of the former. Although this fact might lend itself to either further causes of action (i.e., presumably the public nature of this episode is the basis of the plaintiffs' defamation claim) or greater damages, it does not appear to have any bearing on the battery or intentional infliction of emotional distress claims. (I offer no comment on the merits of a defamation claim.)

As a parallel situation, Baude draws a distinction between consent to sex and consent to sex with an HIV-positive individual. PinkDreamPoppies rejects this parallel, arguing that the contestants "were not actually harmed in any real way." This contention entirely discounts the battery and intentional infliction of emotional distress claims, which are hardly novel theories of recovery. Indeed, these garden-variety causes of action embody traditional legally recognized harms. At any rate, state legislatures have begun to expressly criminalize withholding HIV-positive status from potential sexual partners. See, e.g., State v. Thomas, 983 P.2d 245, 247-48 (Idaho Ct. App. 1999) (affirming conviction of HIV-positive defendant who engaged in anal intercourse with transsexual without informing “her” of his disease). The American tort system recognizes similar harms. See, e.g., Hogan v. Tavzel, 660 So. 2d 350, 351-53 (Fla. Dist. Ct. App. 1995) (recognizing claims for intentional infliction of emotional distress and battery in context of fact scenario in which genital warts were transmitted from unfaithful husband to spouse via otherwise consensual intercourse).

Finally, in the comments, PinkDreamPoppies evinces a concern that a legal victory for the plaintiffs in this case would constitute "a further reinforcement of anti-trans prejudice." What's remarkable about this particular concern is its contrast with the prejudice that PinkDreamPoppies displays in his/her initial post. Without any factual basis, PinkDreamPoppies insinuates that the contestants must be homophobes and, by his/her own admission, can hardly refrain from insulting them. Certainly transsexuals are free to define their own sexual identity as they see fit, but so are these contestants. I have no love for "reality" television and the sort of human beings that it attracts, but deceiving participants into committing homosexual acts strikes me as being a considerable affront to their sexual autonomy and their right to define their own sexual identity. One need not be a homophobe in order to not desire to engage in homosexual sexual contact, let alone to not desire to do so under false pretenses in a highly public manner. Indeed, this is why PinkDreamPoppies' contention that no real harm resulted to the contestants is specious.

Some of the men are believed to have been intimate with Miriam before discovering at the end of the show that she was a pre-operative transsexual.

However, no details are offered regarding the alleged intimacy. The report also quotes a spokeman for the production company whose remarks reflect the deception involved:

A spokesman for Brighter Pictures said it had made a point of never referring to Miriam as a woman when getting the men to take part.

"As Miriam is a transsexual, I would never refer to her as male or female. She is a gorgeous creature," he said.

Doubtless, when identifying "her" sex, Miriam does not classify "herself" as "creature." Of course, the fact that "her" sex was not expressly identified is hardly a defense, as one may as readily deceive via omission as by affirmative misrepresentation. This spokesman's remarks are so disingenous that they actually do a disservice to Brighter Pictures.

Update II: Will Baude wonders about the wisdom of a legal rule that requires informed consent as a predicate to consensual sexual relations. He writes:

As I started to ruminate in my last post, there are a whole lot of different permutations of this problem. The Clerk cautions us that "one may as readily deceive via omission as by affirmative misrepresentation." But if that's so, then what exactly must I avoid deceiving my future partners about? Does the rule change with the level of intimacy involved, or does a single kiss or caress delivered in the absence of full disclosure trigger the sexual assault barrier?

After all, most of us have standards about who we'll sleep with, kiss, and otherwise associate with romantically . . . .

Baude then goes on to list several such hypothetical standards (e.g., HIV-positive status, being an atheist, being married, being inept in bed, et cetera). Although Baude concedes that these states differ from one another in material respects and may be distinguished, he despairs of finding a meaningful way of doing so by legal rule and proposes that legal actions (i.e., lawsuits) be limited to situations in which a concrete physical harm may be demonstrated (e.g., transmission of herpes).

That's not necessarily a bad solution as a matter of policy; however, it does not happen to be the law. As I have written at some length, absolutely no physical harm need be proven in order to maintain and prevail on a traditional common law claim of battery. Indeed, explicit physical contact is not a prerequisite to a battery cause of action under the right circumstances. So Baude is faced with arguing that an exception to the preexisting rules is desirable in this particular context. I take it that his line-drawing dilemma is directed toward this end.

The law does appear to have addressed the line-drawing difficulty outlined by Baude, however. In fact, I think that it has done admirably well in this regard. Consider the following passage from Hogan v. Tavzel, a case involving the transmission of a veneral disease:

The Restatement of Torts Second (1977) also takes the view that consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease. Specifically, it provides the following example: A consents to sexual intercourse with B, who knows that A is ignorant of the fact that B has a venereal disease. B is subject to liability to A for battery. Illus. 5 § 892B. Other authorities also conclude that a cause of action in battery will lie, and consent will be ineffective, if the consenting person was mistaken about the nature and quality of the invasion intended. See, Prosser and Keeton, n. 105, § 18 at 119-20; 1986 U.Il.L.Rev. 779 Paul Murray & Brenda J. Winslett, "The Constitutional Right to Privacy and Emerging Tort Liability for Deceit in Interpersonal Relationships."

660 So. 2d 350, 352-53 (Fla. Dist. Ct. App. 1995) (emphasis added).

It seems to me that the standard in bold font will readily resolve the sorts of difficulties that Baude envisions, albeit not in the sort of rigid, formalist method that a physical harm prerequisite would. For example, if one consents to sexual relations with an atheist, having done so due to being deceived to the effect that one's partner is actually a devout coreligionist, the sexual acts to which consent was given remain of precisely the same nature and quality. What we have in such a situation is fraud in the inducement, not fraud in fact (i.e., no material misrepresentation about the sex act itself is at issue). In the instance of a pre-operative transsexual, the actual nature and quality of the physical acts extracted by deception are other than those for which consent was granted (i.e., homosexual as opposed to heterosexual sexual relations). The fraud in this instance goes to the very essence of the acts involved (i.e., most people do consider whether a potential partner has a penis to be a material consideration one way or the other).

Although the lower appellate court in Neal rejected the spouse's battery claim, it did engage in precisely this sort of analysis. The Idaho court of appeals wrote:

Where a person's consent to physical contact is given based upon a substantial mistake, known to or induced by the actor, concerning the nature of the contact itself or the extent of the harm to be expected therefrom, the consent is deemed to be ineffective, and the actor may be held liable as if no consent had been given. See RESTATEMENT (SECOND) OF TORTS § 57 (1965); RESTATEMENT (SECOND) OF TORTS § 892B(2) (1979). For this rule to apply, however, the mistake must extend to the essential character of the act itself, rather than to some collateral matter which merely operates as an inducement. See PROSSER AND KEETON, supra, § 18, at 120. "This is true, in general, whenever the other has given his consent with full understanding of the conduct, the invasion of his interests and the harm expected to follow, but has done so because of a mistake concerning some other reason for consenting." RESTATEMENT, supra § 892B(2) comment g.

Ultimately, the Idaho appellate court rejected the battery claim in Neal on the basis that the facts involved fraud in the inducement. As detailed in the main body of my original post, the Supreme Court of Idaho disagreed on this point. One might debate the state high court's application of the principle in Neal, but the case involving Miriam seems substantially more straightforward on this point. Agreeing to be romantically or sexually involved with a man as opposed to a woman entails marked physical differences, if nothing else. The sexual possibilities are not at all the same. Most human beings are not omnisexual (or at least do not consider themselves to be so) and make their decisions accordingly.

No doubt, Baude will be displeased with the American legl rule. He writes:

It's unrealistic and unreasonable to demand full disclosure of everything that could possibly be objectionable to one's partner. It's also a bad idea to tell judges to just figure out which qualities it would be "reasonable" to object to and which it would not. If we're going to have rules of disclosure, we should do it either by strict enumeration through validly enacted statutes, or a sensible bright-line legal rule.

This is an understandable reaction, but a mistaken one, I think. Laymen and law students pine away for Black Letter Law (i.e., certainty in the law, definite legal answers). Although this would be convenient and useful, human affairs are simply to diverse to do this meaningfully in many contexts. Intentional torts like battery and intentional infliction of emotional distress are constrained by the legal elements of the causes of action, common law interpretation, and the common sense of juries. That, it seems to me, is sufficient safeguard for society. The private nature of sexual relations acts as a natural brake on sex-related litigation. But we adjudicate one case at a time in order to provide remedies when they are sought and justly due. That's really the genius of the common law system.

If English law is akin to its American cousin on these points, I think that the plaintiffs ought to prevail. Operating on the same assumption, I would venture to posit that I know that they at least should not be washed out of court without a jury trial.

Lost In Translation

I recently wrote about allegations of interpreter misconduct in federal court proceedings. By way of the Texas Law Blog, I came across an ABA article that suggests that there are other problems where translation is concerned. Among other things, the story relates that:

The bigger problem, though, is finding and securing qualified interpreters. Even the federal system, considered the gold standard, doesn’t always have the resources to provide interpreters as required by law.

In August, the 8th U.S. Circuit Court of Appeals at St. Louis upheld a defendant’s drug-distribution conviction but chided the lower court for an "unsatisfactory record" of providing certified interpreters. United States v. Gonzales, 339 F.3d 725. The panel said the U.S. District Court for the Southern District of Iowa used uncertified interpreters in 90 percent of all proceedings in 2001. The national average was only 12 percent.

"When district courts, including the Southern District of Iowa, decline to follow the unambiguous language of the Court Interpreters Act, the rights of nonnative-English-speaking criminal defendants may be impermissibly jeopardized," the panel said.

The defendant didn’t prevail in the 8th Circuit, but courts have shown they will set aside convictions for failure to interpret. In United States ex rel. Negron v. State of New York, 434 F.2d 386 (1970), the 2nd U.S. Circuit Court of Appeals at New York City overturned the murder conviction of a Spanish-speaking defendant because he was provided only occasional summaries of what was happening during his trial.

November 01, 2003

"Diversity" on the High Court

Proponents of "diversity" continue to monitor the ethnic make-up of the Supreme Court's clerks. Professor Debra Strauss of Pace University School of Law is quoted as commenting that, "'we are beginning to get a more realistic reflection of the general population'" in the clerks. This may well be true in terms of the ethnic make-up of the law clerks, but it escapes me why this might lend itself to "diversity" apart from ethnicity.

Should the High Court also seek a perfect balance of the sexes among its clerks? What about religious background? Ought the Court also ensure that its clerks come from a variety of socioeconomic backgrounds as well? With regard to ethnic minorities in particular, it is often asserted that those, like Clarence Thomas, who hold certain political beliefs are insufficiently racially authentic. Should the justices take this into account in the name of "diversity" as well?

And how are all or any of these factors to intersect with an assessment of the various clerk candidates' credentials? How does one balance such incommensurables as ethnicity and law school grade point average? Talismanic phrases like "plus factor" really do not succeed in clarifying the issues much.

It should be fairly apparent from the questions that I am propounding that I consider ethnic diversity to be a poor proxy for "diversity" in general, whatever that vague term might mean. I take it that proponents of ethnic diversity have not thought this through themselves. Consider, for example, the demographic category of "Asian-Americans." Even assuming that Americans of particular racial or ethnic ancestries bring a particular point of view to the table solely based on the supposed cultural background that purportedly coincides with a certain ethnicity, "Asian-American" is hardly a useful designation. As the Law.com article states:

Just looking at these names it is clear that we are discussing people whose ancestries most likely involve the Near or Middle East, the Indian subcontinent, and the Far East. What exactly do peoples this varied have in common such that lumping them into one category for "diversity" purposes is useful or informative? Doubtless, these varied peoples also had markedly different experiences in coming to and residing in America. Of course, if these clerks' families have been in this country for multiple generations, it may be that they are only loosely acquainted with their own ancestral backgrounds.